Myanmar: Press bill falls far short of international law and would leave press open to abuse

Article 19, Myanmar: Press bill falls far short of international law and would leave press open to abuse, 27 February 2013, available at: http://www.refworld.org/docid/513836372.html [accessed 10 December 2016]

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Despite promises of reform, a new press bill drafted by Myanmar's Press Council retains a vagueness that will leave the print media open to abuse from the government and other powerful actors.

**Update** a second bill has now been published by the Ministry of Information and Communications - so there are now two bills published in February. ARTICLE 19 will review the second bill shortly. For more information, please contact oliver(a)article19.org.

The draft Press Law Bill (2013) says that the media should become "a fourth pillar" of democracy "watching and guiding the other three". The media will not however become a fourth pillar under this draft because it undermines their role and overly restricts their work.

Governments often abuse regulation of the press to restrict rather than protect the right to freedom of expression and a free media. Journalists and the press should not be subject under such press regulations to greater restrictions on their right to express themselves compared to ordinary people.

As such, most advanced democracies have abolished any regulation of the press except by general laws. Experiences from other newly democratising states in Eastern Europe for example show that even young democracies do not need a press law.

The bill has both positive and negative aspects. On the positive side, it repeals draconian laws and replaces them with provisions that proclaim human rights. On the negative side it falls substantially below international freedom of expression standards.

Problems in the Press Law Bill

1. Who is a journalist?

Even though the bill refers to the rights and duties of journalists, it is unclear who would be protected under the rights described, and whether for example it includes freelancers or stringers.

Recommendation: Protection should be provided to all journalists working in the country and extended to media workers in general, such as editors, publishers, photographers. A journalist should be defined broadly as anyone who is regularly and professionally engaged in the collection and dissemination of information for the public via any means of mass communication.

2. Reporting regulated by the state

The bill sets out the duties of journalists and aims to regulate issues such as reporting on court cases, children and women, or on poor and disabled people. These duties should not be imposed by the state, which might amount to an interference with freedom of expression that is unnecessary in a democratic society

Recommendation: The press should be encouraged to self-regulate rather than have rules imposed by the state. Journalists and press outlets should be free to adopt and voluntarily follow professional standards of ethics.

3. Overbroad restrictions on content

International law has a clear and non-expandable list of acceptable restrictions to freedom of expression. The restriction in the bill making sure that publications "benefit national and public interest" and that prohibit "provocative expression, "false propaganda" are not among such permissible restrictions..

Recommendation: Only those clear restrictions covered under Article 19(3) of the International Covenant on Civil and Political Rights should be listed in the bill.

4. Freedom of information is limited

The bill limits access to information held by government by excluding "matters of public and national security" and "secret records". International standards are clear however that all information should be provided to journalists or members of the public, unless the government department can show that they are hiding the information to protect a legitimate aim as listed in law, the disclosure must threaten to cause substantial harm to that aim, and the harm to the aim must be greater than the public interest in having the information.

Recommendation: The bill should not exclude "matters of public and national security" and "secret records" from being accessible, and the government should create a right to information law.

5. Press Council is not independent

The bill preserves a statutory Press Council under the control of the president, therefore placing control and penalties for the press in the hands of the government. The president decides who will be on the council, and as there is no provision covering funding or competence, will presumably decide what it will do, leaving it wide open to abuse.

Recommendation: A press council should be created by the press itself through a process of consultations with participation from all stakeholders. If such a council is mandated by the state in statute, it should include a clear guarantee of independence from government influence.

6. Press outlets require permission or licences

The bill violates international law by requiring press outlets to obtain permission or licences in order to operate. A government that decides who can run a newspaper, magazine or news website in effect controls the media.

Recommendation: No licencing or permissions should exist beyond general laws for businesses such as tax.

7. Foreign publications are still subject to prior-censorship

The bill gives powers to a "respective ministry" to inspect and decide whether imported foreign publications are "capable of threatening the national security and public interest". By its nature this amounts to prior censorship.

Recommendation: Only courts should have powers to order seizure of publications, be they imported or produced in Burma.

Positive features in the Press Law Bill

A. It repeals draconian laws

The bill will repeal Myanmar's infamously draconian Printers and Publishers Registration Law (1962) which requires prior-censorship in all forms of media.

B. Journalists are empowered and protected

By proclaiming specific rights, the bill recognises the need for protection of journalists and the press. As the draconian Printers and Publishers Registration Law (1962) does not use the language of rights, it gives no opportunities for journalists and the press to make claims in defence of their interests.

C. Right to freedom of expression proclaimed

Even though Myanmar sits alongside those countries such as North Korea that have not ratified any of the international human rights treaties, the bill proclaims a number of rights aiming at free expression; for example the right to information or the right to express opinions and convictions. In compliance with international law the bill sets out that these rights belong to everyone as opposed to journalists only.

D. Introduction of arbitration for disputes with the press

The bill creates an extrajudicial dispute resolution mechanism by empowering the Press Council to examine in the first instance complaints against the press. Arbitration outside courts provides speediness and reduces cost in many states worldwide, therefore strengthening media freedom. By requiring victims of press violations to go to the Press Council before a court, the bill protects journalists and the press from expensive and intimidating court proceedings.

E. Introduction of the protection of journalists' sources and the right to accreditations

The bill strengthens the status of journalists by recognising the right to accreditation and the right not to reveal journalists' sources, as is the norm in most states worldwide.

Next steps

ARTICLE 19 will be carrying out a detailed legal analysis of the draft bill, including specific recommendations that we will put to the government of Myanmar and civil society in the country.